Digital Services Act published

For anyone trying to look up the status of the Digital Services Act, please note that it has been published on 27 October 2022 in the Official Journal L 277, page 1. 

OECD report on Dark Patterns

 Yesterday, aka 26 October 2022, the OECD has released a report on Dark Patterns which had been in the making for almost two years. LLM students who would like to write about the topic or just about anyone looking for a clear intro to the subject - this report is your friend! It contains not only a helpful classification of different types of dark patterns but also a quite comprehensive review of relevant regulatory frameworks/interventions, known case-law and much (if not all, and if arguably too US-centred and English-based) of the literature you may also want to look at, including... Joasia's 2019 JCP paper The Transparent Trap! Kudos there.

A working definition is provided at the outset which may or may not gain traction in the field: dark patterns, accordingly, are 

"business practices employing elements of digital choice architecture, in particular in online user interfaces, that subvert or impair consumer autonomy, decision-making or choice. They often deceive, coerce or manipulate consumers and are likely to cause direct or indirect consumer detriment in various ways, though it may be difficult or impossible to measure such detriment in many instances."

[The first part of the report, where dark patterns are typified and their impact assessed, I skip for now - but you can find it all online!]

The report acknowledges that more enforcement is necessary in the EU, while ultimately praising the UCPD's relative ability to address the problem in comparison with other instruments: if on the one hand resonance with the black listed items in the annex makes it possible to address certain black patterns with a degree of legal certainty, the report observes, the "principle-based" prohibition of unfair commercial practices works quite well to cover technological and commercial developments like the ones at hand. 

One critical point that is (thankfully) mirrored in the report is known criticism of the average consumer standard: this standard is hard to square with consumers' apparent vulnerability to dark patterns & other online perils &, the report observes, seems particularly problematic in the context of increasing online personalisation. The report also highlights criticism of disclosure rules, in particular as a way of preventing consumers from falling for dark traps: it turns out, the report concludes, that all experiments trying to measure the effects of disclosures in this area failed to detect any serious improvement. Hence the relevance of information may be limited to broader education campaigns and possibly to a limited set of dark patterns. 

The report also interestingly reviews examples of technical supports that are being developed - essentially, dark pattern-blockers for one's browser. These are, apparently, useful in some cases but less so when the dark patterns is not to be "written away" in code (p 47). I would like an app like that though!

As a scholar who reads Law & Econ work with a mix of interest and skepticism, I was less impressed by the report's discussion of nudges on page 37, under "Digital choice architecture". The title reflects a trend that has been going on for a long time of course; the report, however, brings together under one technique concerns that may need to be kept separated. "Privacy by design", that is mentioned as example, is not the same as a "bright pattern" based on extrapolating "welfare enhancing" choices from supposed "preferences or expectations". While the report necessarily gives a limited overview on each issue, conflating privacy protection with "consumertarian" views and hard-core nudge advocates is to my mind quite problematic.

Anyway, this is really a good starting point but also, as far as I can tell, a fairly comprehensive restatement that those already in the debate will also benefit from. Recommended read!

18th International Association of Consumer Law Conference (IACL)

IACL conference is back in 2023! After the pandemic, the International Association of Consumer Law is picking back up its activity and organising its 18th event - in Hamburg on July 19-21. The call for papers is open until December 16th, and you may find more details on it on the attached photos as well as here.

2nd Annual Digital Consumer Event of the European Commission

The European Commission organises the 2nd Annual Digital Consumer Event on November 21st. The event will be held in English and streamed online thus it will be relatively easy for our readers to participate in it. You may register here: Commission website.

Three panels will be devoted to various concerns related to the digital environment: online consumer vulnerabilities; virtual traps and possible addiction triggers of online purchases; unfair terms and lack of transparency in online contracting.

Administrative payment orders for airlines - CJEU in LOT (C-597/20)

On 29 September the CJEU issued another judgment on the interpretation of Regulation 261/2004 in the case LOT (C-597/20). This judgment refers to a less commonly referred to provision of this Regulation, its Article 16, obliging the Member States to assure the effective enforcement of its other provisions. Whilst it is clear from this provision that the Member States need to designate a body responsible for the enforcement, the measures that are at the disposal of this body are referred to only in general terms: measures necessary to ensure that the rights of passengers are respected. 

In the case at hand, the question was whether the designated body in Hungary was authorised to order an airline to pay out compensation for a delayed flight to passengers affected by this delay who have made individual complaints to that body. Previously, in the judgment Ruijssenaars and Others (see our comment No administrative fines for misbehaving airlines... and Air passengers denied compensation should go to court) the CJEU interpreted paragraphs 2 and 3 of Article 16 Regulation 261/2004 as not requiring designated bodies to act on any individual passenger complaints and not being required to issue administrative fines for each individual infringement of the Regulation (paras 24 and 25). This aimed at protecting the bodies from becoming overwhelmed by individual complaints and ensuring they have space to conduct their general market monitoring obligations. 

In the LOT judgment the CJEU had an opportunity to clarify that pursuant to Article 16 Regulation 261/2004 the Member States have discretion what powers to award to the designated bodies. This could mean that they choose to confer enforcement powers in individual passenger complaint cases on the designated body (paras 26-27). The national solutions must, however, provide for an option for passengers to seek further compensation for their losses before a court, pursuant to Article 12 Regulation (para 29). This means that the administrative procedure may not obstruct the passenger's or the air carrier's access to an effective, judicial remedy, giving effect to Article 47 of the Charter (paras 36-37).

This judgment is a welcomed clarification, as it may embolden the Member States to confer more powers on the bodies designated to enforce air passengers protection. The tricky part - how to avoid a flood of complaints - applies to both administrative bodies and courts, and could be helped by airlines complying more with the Regulation 261/2004 in the knowledge that passengers may claim sums owned them in various ways.

Different airlines, but connecting flights - CJEU in flightright (C-436/21)

A week ago, on October 6, the CJEU issued a judgment in the case flightright (C-436/21) on the concept of 'connecting flights' in Regulation 261/2004 on air passenger rights. This concept has been used e.g. in Article 2(h) of the Regulation, where the 'final destination' has been defined as 'the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight (...)'. 

The passenger in this case travelled from Germany to the US via Switzerland. Their journey required 3 flights, which were purchased together from a travel agency. American Airlines was mentioned on the single electronic ticket that the passenger received as the operating air carrier, even though the first flight was performed by Swiss International Air Lines. The whole journey had a single reservation number and the passenger received an invoice showing a single price for the return flights. In this case the last of the connecting flights, taking place within the US, was delayed by more than 4 hours. The passenger assigned their claim for compensation of 600 Euro from American Airlines to flightright.

The passenger would fall within the scope of Regulation 261/2004 only if their journey was deemed to have started in the territory of the EU (Germany). The issue was that the first flight was carried out by Swiss International Air Lines between Germany and Switzerland. American Airlines operated the second and third flight, but the second flight departed from outside the EU - from Switzerland. Swiss International Air Lines and American Airlines have no specific legal relationship and their flights have been combined for the purposes of this passenger by the travel agency. Should American Airlines then have to pay compensation under Regulation 261/2004 if their records might not have reflected that the passenger would have started their journey within the EU and therefore could be covered by Regulation 261/2004?

The CJEU says yes, referring to the previous judgment on defining 'connecting flights' as flights booked as a single unit (Wegener - see our comment Bad news for airlines...) (para 20). As the passenger's ticket seems to have confirmed that their reservation was for the entire journey, it would qualify as a single unit (para 26). The CJEU highlights further that Regulation 261/2004 does not require connecting flights to be performed by operating air carriers who are in a particular legal relationship (para 28). American Airlines seems, therefore, liable in this case for paying out the compensation to passengers. They could, however, try to seek recourse on the tour operator who has booked the journey, if they failed to fulfil their obligations (para 30).